ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (Agency No. A37-332-497).
The opinion of the court was delivered by: Weis, Circuit Judge.
Submitted Under Third Circuit L.A.R. 34.1(a) September 29, 2005
Before: RENDELL, FUENTES and WEIS, Circuit Judges.
Petitioner Carrol Morgan is subject to an Order of Removal pursuant to section 237(a)(2)(A)(iii) of the Immigration and Naturalization Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as a resident alien who has been convicted of drug offenses classified as "aggravated" felonies. Petitioner contends that she is not removable because she obtained derivative United States citizenship upon her mother's naturalization while her parents allegedly were separated. Because petitioner cannot establish that her parents were legally separated at the time her mother was naturalized, we will deny the petition for review.
Under former section 321(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1432(a), a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child's parents are legally separated. 8 U.S.C. § 1432(a)(3).
Petitioner was born in Jamaica in 1968. Her parents married in that country in 1974. Four years later, her mother, Verna Mae Morgan, entered the United States as a lawful permanent resident. In 1981, petitioner joined her mother in the United States, also entering as a lawful permanent resident. On July 25, 1984, when petitioner was age sixteen, her mother was naturalized. Her father, Hopeton Morgan, entered the United States on December 23, 1984 and lived with her mother in Philadelphia, Pennsylvania. Neither petitioner nor her father have ever been naturalized.
In April 2003, petitioner was charged with being an alien convicted of an aggravated felony and therefore subject to removal. She applied for withholding of removal, asylum and relief under the Convention Against Torture.
The IJ refused the petitioner's requests for a continuance of the proceedings and, after a hearing, denied asylum, withholding of removal and relief under the Convention Against Torture. The IJ also rejected the petitioner's contention that, because she was born out of wedlock, she was eligible for derivative citizenship under 8 U.S.C. § 1432 upon her mother's naturalization. Petitioner appealed to the Board of Immigration Appeals ("BIA"), again asserting derivative citizenship, but on this occasion she contended that she was eligible because her mother and father were legally separated at the time of the naturalization.
The BIA dismissed petitioner's appeal on July 9, 2004, finding that she had failed to establish derivative citizenship because there was no evidence that the petitioner's mother was ever legally separated from her father. In reaching this conclusion, the Board relied on case law that interpreted the statutory term "legal separation" to mean separation recognized or achieved through judicial proceedings. The Board noted that the petitioner's request for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, based on the same claim for derivative citizenship, had been denied. See Hurde-Morgan v. Ashcroft, No. 04-cv-936, 2004 WL 1166588 (E.D. Pa. May 24, 2004). The Board also rejected the petitioner's complaint about the IJ's refusals of continuances because the motions lacked sufficient articulation of the facts or evidence that could have demonstrated that actual prejudice or harm resulted from the denials.
In this petition for review, petitioner has abandoned her claims for withholding of removal, asylum and relief under the Convention Against Torture. She argues only that the IJ erred in concluding that she had not obtained derivative citizenship and in denying her motions for continuance of the hearing.
8 U.S.C. § 1252(b)(5)(A) grants us jurisdiction to review a claim of nationality if there is no genuine issue of material fact with respect to that claim. 8 U.S.C. § 1252(a)(2)(C), however, provides in relevant part, that "except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense . . . covered by section 1227(a)(2)(A)(ii)." Subparagraph (D) provides that we have jurisdiction to consider any constitutional and legal questions that may be presented in this petition for review, notwithstanding anything in subparagraph (C). See 8 U.S.C. § 1252(a)(2)(D).
Though subparagraph (D), as part of the REAL ID Act, did not become law until May 11, 2005, the Act applies retroactively to any case, "in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of the enactment of this division." REAL ID Act of 2005 § 106(b), Pub.L. No. 109-13, 119 Stat. 231. We have held that the REAL ID Act amendments "restoring our jurisdiction" apply to all "pending or future petitions for direct review challenging final orders of removal, except as may otherwise be provided in § 1252." Papageorgiou v. Gonzales, 413 ...